Employers Say OFCCP Disabilities Proposal Would Be Overly Burdensome and Ineffective

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By Jay-Anne B. Casuga  

In comments on a recent proposal by the Labor Department's Office of Federal Contract Compliance Programs to update federal contractors' affirmative action and nondiscrimination obligations for individuals with disabilities, employer representatives argued that the proposed changes would be ineffective and unduly burdensome.

Supporters of the proposal, however, urged OFCCP to go even further with its plans to introduce numerical utilization goals, according to a BNA review of public comments submitted to the agency.

OFCCP received approximately 400 comments in response to its December 2011 notice of proposed rulemaking to amend regulations (41 C.F.R. Part 60-741) implementing Section 503 of the Rehabilitation Act (29 HRR 1323, 12/12/11).

Most of the comments generally supported OFCCP's aim of improving employment opportunities for individuals with disabilities.

However, commenters divided on whether OFCCP's proposed rule, as currently drafted, actually would allow the agency to achieve that objective.

Approximately 70 disability and civil rights organizations, employee groups, and some federal contractors, as well as more than 150 individuals wrote to generally express their belief that OFCCP could meet the objective through its proposed 7 percent national utilization goal and the possibility of a 2 percent subgoal for individuals with severe disabilities, with some commenters encouraging the agency to increase those goals to 10 percent and 5 percent, respectively.

They also backed proposals that would require contractors to invite job applicants to voluntarily self-identify as disabled during the pre- and post-offer stages of the hiring process, to annually review certain personnel processes, to analyze certain referral, applicant, and hiring data, to adhere to mandatory job listing requirements, and to enter into linkage agreements with specified organizations that can assist with recruitment of individuals with disabilities.

In contrast, approximately 80 national employer groups, construction organizations, consulting firms, law firms, universities, and federal contractors, and more than 60 individuals raised concerns that OFCCP has severely underestimated the time and cost burdens for its proposal.

They also stated their belief that some provisions in the proposed rule may conflict not only with each other but also with OFCCP's own internet applicant rule and the Americans with Disabilities Act, invade the confidentiality rights of individuals with disabilities, and run counter to the goal of equal employment opportunity for all protected groups.

The public comment period originally was scheduled to end Feb. 7, but was extended to Feb. 21 (30 HRR 148, 2/13/12). OFCCP has yet to announce a target release date for the final rule.

Supporters Emphasize Need for Measurable Goals.

Most commenters provided their views on OFCCP's proposal for a 7 percent national utilization goal for each job group in a contractor's workforce.

Supporters of the numerical goal observed that in the four decades since the enactment of Section 503, the statute has been limited in its effectiveness because of the lack of “meaningful and measurable” goals.

“For too long, affirmative action efforts under Section 503 have been largely meaningless, as the current regulations lack baseline goals for hiring people with disabilities, do not require the data collection needed to evaluate the effectiveness of affirmative action efforts, and rely almost exclusively on voluntary action,” said the Judge David L. Bazelon Center for Mental Health Law, a Washington, D.C.-based nonprofit organization that wrote on behalf of 27 disability groups.

Despite their general praise for OFCCP's proposed utilization goal, some groups expressed their belief that a 7 percent goal was too low and instead suggested a 10 percent goal.

Commenters including AAPD, the Bazelon Center, and the Consortium for Citizens with Disabilities said a higher goal would be more appropriate “in light of the breadth of the targeted group.”

Others Say Data for Goal Would Be Unreliable.

The Society for Human Resource Management and the College and University Professional Association for Human Resources said that while their members appreciate the advantages of anonymous reporting of disability status data, they are “perplexed” as to how OFCCP expects federal contractors to use that information to determine if utilization goals are met by job group or as part of annual reviews of personnel processes.

Management law firm Littler Mendelson agreed and added that an “across-the-board” utilization goal “without any data to establish that such goal is meaningful, and without recognizing certain job groups will have inherent limitations that might make such goals unrealistic or legally impossible, renders the goal meaningless and unenforceable, which in turn undermines the entire purpose of the goal.”

Moreover, management law firm Morgan, Lewis & Bockius pointed out that Section 503 requires affirmative action for “qualified individuals with disabilities,” and does not grant OFCCP statutory authority to “take affirmative action with regard to a general category of 'individuals with disabilities.' ”

The Equal Employment Advisory Council, a Washington, D.C.-based nonprofit employer association, and other employer groups suggested that if OFCCP finalizes its utilization goal proposal, the agency should make it apply to a contractor's entire workforce across all establishments nationwide, instead of by job group.

Employer groups and others criticized many of the proposals as unduly burdensome and inconsistent with the Paperwork Reduction Act and President Obama's Executive Order 13563, which requires federal agencies to implement the “least burdensome tools for achieving regulatory ends.”

Groups including EEAC, the U.S. Chamber of Commerce, the HR Policy Association, and the Center for Corporate Equality contended that OFCCP understated the number of federal contractor establishments that would be required to comply with the Section 503 proposed rule if it becomes final, as well as “grossly” underestimated or ignored the time and cost burdens for contractor compliance.

Apart from undue burden concerns, commenters representing contractors raised concerns that the proposal potentially could conflict with the ADA and other confidentiality requirements.

For example, they said the proposal for pre-offer invitations for applicants to voluntarily self-identify as disabled potentially could run afoul of the ADA, which generally prohibits employers from asking applicants about disabilities prior to making an offer of employment.

Furthermore, several commenters, including the Chamber of Commerce, observed that some of OFCCP's proposals potentially could conflict with the agency's own 2006 internet applicant rule (41 C.F.R. §§ 60-1.3 and 1.12).

For example, the proposed rule would require contractors to collect data on all referrals of individuals with disabilities, as well as consider a disabled applicant for all available positions for which he or she may be qualified when the original position for which he or she applied is unavailable.

The National Industry Liaison Group, an employer association that works to foster communication between contractors and OFCCP, said these proposals potentially go against the internet applicant rule, which imposes certain recordkeeping requirements on contractors only where a job seeker meets a four-prong definition of “internet applicant.” One of the rule's four elements requires that an individual actually submit an expression of interest in a particular position in order to be considered an “internet applicant.”

Employer groups also raised concerns about what they considered to be the rigid specificity of OFCCP's proposed reasonable accommodation procedures, especially with respect to response time periods and written confirmations and denials.

The groups emphasized the need for contractors to be granted flexibility in preparing reasonable accommodation procedures appropriate for their own organizations.

By Jay-Anne B. Casuga  

Comments for the Section 503 NPRM may be accessed at http://www.regulations.gov, under a search for RIN No. 1250-AA02.

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